By Dr. David Laing Dawson
Some years ago a very smart young lawyer helped the physician employees (Medical Directors of Psychiatric Hospitals) of the Ministry of Health of Ontario navigate the arcane legalese and complexity of involuntary admission for assessment, capacity to consent to treatment, involuntary treatment, and informed consent. Then one day, informally, she admitted to some of us she had just that weekend learned the true nature of “informed consent” for medical procedures. Her toddler son had fallen out of his high chair and cracked his head on the tile floor.
He was rushed to the hospital, moving quickly from emergency services, through imaging services, to the pediatric surgery department. And then the Chief of Surgery came to talk to the lawyer/mother of the boy, and told her that they would have to operate to relieve pressure on his brain.
The lawyer asked, “What will happen if you don’t operate?”
The doctor replied, “Your son will die.”
She gave consent.
And for the first time, I think, she understood that within the realities of disease, injury, urgent care, and medical treatment there really is no time for the protracted rhythms, ponderings, delays, appeals, postponements, and deliberations of the legal profession.
The social contract between doctor and patient is different that that between lawyer and client. The timing, rhythms and imperatives are different. The goal is different.
We must of course have in place transparent checks against the potential abuse of power by any person in a position of power, be it a doctor, priest, lawyer, police officer, or teacher. But our mental health acts tend to be written by lawyers who don’t understand the rhythms and imperatives of illness, disease and its treatment.
And the people who must abide by these “mental health acts” are doctors who have no spare time nor inclination to engage in the protracted theatre and language parsing of the legal profession.
The mental health act of Ontario would probably work well if every psychiatrist had but one or two patients at a time and enjoyed the theatre of review boards, hearings, courts, and writing briefs, and if every review board could be assembled within 24 hours.
Ultimately the mental health act of Ontario forces psychiatrists not to consider first and foremost the welfare of his or her patient, but rather the balance of probabilities of outcome and the cost (time, money, grief, rapport) of “trying the case” before a Review Board. These are adversarial systems and they are theatre.
Hence the present situation of untreated psychotic illness, homelessness, very short and repeated admissions to hospital, excessive police responses to mental health crises, and the dramatic expansion of Forensic Psychiatry. And now the same psychotic patient who should be receiving timely and thorough psychiatric treatment must wait until he or she commits a crime of sufficient seriousness to allow the lawyers and courts to decide on the issues of hospitalization, incarceration, competence, and treatment options.
Mind You Reflections on mental illness, mental health and life 
Thank you for putting it so succinctly. Lawyers have locked horns with physicians for decades in Ontario. The lawyers have the time and presumably need the money. The story below illustrates what a farce a hearing can be.
I was called to a Review Board as a witness by a father who bravely took standing at his son’s first Board hearing. Ten years before, an attempt to hospitalize his son had failed in the Emergency Department, when he was not seen by a psychiatrist.
The patient who’d been trapped in a psychosis for well over a decade had landed in hospital this time, so might get much needed treatment! My testimony was to describe how he had behaved very dangerously at a traffic intersection when he was clearly hallucinating. At the end of the hearing he said, pointing at me, that I had not seen the traffic screech and hit him.
The patient took over the hearing when I was called. He first demand to know who I was. I told him my name: “Patricia Forsdyke.” He promptly told me that I was not HER, and he demanded that I get out my ID. As I proceeded to do so, the Chair stepped in while I fumbled through my untidy handbag. I was the President of the local Chapter of Friends of Schizophrenics and was on the Provincial Board, and pretty well-known in town. The patient told me that I was not Patricia Forsdyke, because “she” had black hair and black eyebrows ( obviously the female Lucifer). After I finished as a witness, I stayed for the rest of the proceeding. It was bizarre. His father did a wonderful job. It was excruciating for his mother.
Everyone there could see how ill and trapped in a psychosis the patient was. Yet the Lawyer won. His doctor was defeated. He was not to be treated. The young female lawyer looked very concerned and almost tearfully confided in me that she knew that he was ill, but that she was JUST doing her job!
The patient remained in hospital for at least a year untreated. But after the NINTH Review Board he was given treatment. And believe it or not, despite his paranoia, he responded pretty well to treatment, and was able to live thereafter, with support and good follow up, in the community. Later he was a great help to his elderly mother, who, in a few days time will be 100! He loves her dearly as she does him. From time-to-time I come across him walking downtown and he is always very polite to me. He gives me updates on his mother.
THE LAW IS AN ASS! And it has no mercy
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Thank you for addressing this enormous problem.
We have too few psychiatrists and hospital beds and far too many lawyers. The misuse of mental health funding in this way is catastrophic for people with severe mental illnesses.
Can’t we at least require that any lawyer hired in these situations must have science-based education about these disorders? It’s clear from the writings of the legal organizations that pursue this power that they have no idea about the essential role that medically based treatments play in helping people with these illnesses. Law schools are being irresponsible in allowing miseducated graduates to continue to hurt the people they are purporting to help.
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Well said Susan.
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